Manchester Housing Authority v. Arms Textile Mfg. Co.

• Decision Date: 31 May 1974
• Docket Number: No. 6778,6778
• Parties: MANCHESTER HOUSING AUTHORITY v. ARMS TEXTILE MFG. CO. et al.
• Court: New Hampshire Supreme Court

Page 640

320 A.2d 640

114 N.H. 346

MANCHESTER HOUSING AUTHORITY v. ARMS TEXTILE MFG. CO. et al.

No. 6778.

Supreme Court of New Hampshire.

May 31, 1974.

Craig, Wenners & Craig and Joseph F. McDowell, III, Manchester, for plaintiff.

McLane, Graf, Greene & Brown and Arthur G. Greene, Manchester, for defendants.

GRIMES, Justice.

In a land condemnation proceeding defendant-company appeals from the denial of its motion that jury trial be waived because of adverse publicity allegedly created by the plaintiff-Manchester Housing Authority. After a full hearing held on November 20, 1972, and a denial of the motion announced December 19, 1972, defendant, on February 23, 1973, filed a proposed reserved case which was transferred to this court by Cann, J.

Plaintiff raises a threshold issue of the denial of its motion to dismiss defendant's proposed reserved case. Plaintiff argues that no exception was taken to the December denial of defendant's motion to waive jury trial and that the reserved case filed on February 23, 1973, was not timely filed under Superior Court Rule 69. Although it is by no means clear that rule 69 applies to preliminary motions, '(t)he Trial Court had undoubted authority to suspend Rule (69) if justice required. Sanborn v. Railroad, 76 N.H. 65, 79 A. 642; Hall v. Insurance Co., 91 N.H. 6, 8, 13 A.2d 157.' Timmins v. Brennan, 103 N.H. 459, 460, 174 A.2d 419, 420 (1961).

As part of its 'Amoskeage Millyard Project', on January 19, 1970, the Manchester Housing Authority filed a petition for condemnation of land and buildings which included defendant's mill. Defendant's property had been used to manufacture goat hair textiles. The goat hair came from all over the world. Some of it contained anthrax spores and over a long period of time the mill itself became contaminated. Consequently, the threat of disease and especially the cost of decontaminating the mill became a controversial public issue. Prior to the publicity complained of, the parties had made an agreement whereby all expenses incurred in decontamination were to be admissible in evidence in determining compensation for the property even though the decontamination took place after the property changed hands. The cost of decontamination went considerably beyond the $20,000 to $25,000 amount originally estimated by defendant and ultimately cost approximately $250,000.

No findings or rulings were made by the trial court but the record of the hearing indicates the following facts. The publicity on which defendant bottoms its motion to have jury trial waived was spread out over a period of at least twelve months. On November 12, 1970, an article titled 'Deadly Anthrax a Problem for Queen City Authority' appeared on the first page of both city and state editions of the Manchester Union Leader. At this point, counsel for defendant sent a letter to counsel for the authority objecting to the publicity. In November and December of 1970, two other articles on the problem appeared, one in the Union Leader and one in the New Hampshire Sunday News which carried the headline 'Battle Deadly Anthrax'. In the same months, the Concord Monitor also carried an article and two Manchester radio stations each broadcast programs on the story which were allegedly very prejudicial. The issue then lay dormant for three months until revived on April 8, 1971, by a Union Leader article 'State and U.S. Will Help to Solve Anthrax Woes.' Subsequently eight articles of varying prominence in either the Union Leader or the New Hampshire Sunday News carried the story. These articles were spread out fairly evenly from the first of July through the end of November of 1971. Many of the articles attributed their information to officials of the plaintiff.

Because much of the publicity allegedly dealt with the cost of decontamination, because it was purveyed throughout the State over a prolonged period of time, and because the authority was allegedly responsible for it, defendant argues that it could not get a fair trial in any county and that the housing authority thereby waived its right to jury trial by conduct inconsistent with that right.

The right to jury trial in condemnation suits is conferred by statute, RSA 4:35, and can be invoked by the condemnor as well as the property owner. Whelton v. State, 106 N.H. 362, 211 A.2d 409 (1965). Language in several cases has indicated that the right can be waived by conduct inconsistent with the right. King v. Hutchins, 26 N.H. 139 (1852); ...